High Court · 2025
Legal Reasoning
wp-1642-2024-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1642 OF 2024Nagorav s/o Hari KambleAge: 85 years, Occu.: Convict,R/o. At Present confined in,Latur District Open Prison,District Latur. .. PetitionerVersus1.State of MaharashtraThrough Superintendent of Jail,Latur District Open Jail,District Latur.2.D.I.G. Prisons,Central Division, ChhatrapatiSambhajinagar. 3.Secretary,Home Department, Mantralaya,Mumbai. .. Respondents…Mr. Rupesh A. Jaiswal, Advocate for the petitioner.Mr. Birendra Saraf, Advocate General a/w Mr. A. B. Girase, Public Prosecutorfor the State.... CORAM : SMT. VIBHA KANKANWADI & MANJUSHA DESHPANDE, JJ. RESERVED ON : 10 FEBRUARY 2025 PRONOUNCED ON : 24 MARCH 2025ORDER (Per Smt. Vibha Kankanwadi, J.) :-.Present petition has been filed for following reliefs :-“A)By writ of mandamus or any other appropriate writ, orderor direction in the like nature to direct the Respondents to takedecision on premature release forthwith as provided under the[1] wp-1642-2024-J.odtCircular dated 10.01.2006 and Government Notification dated01.12.2015 and/or,B)By writ of mandamus or any other appropriate writ, orderor direction in the like nature to direct the Respondents topremature release the petitioner in terms of the GovernmentCircular dated 10.01.2006 and Government Notification dated01.12.2015 and/or Grant any other relief which this Hon’bleCourt deems fit, by allowing the petition.”2. Heard learned Advocate Mr. Rupesh A. Jaiswal for the petitionerand learned Advocate General Mr. Birendra Saraf along with learnedPublic Prosecutor Mr. A. B. Girase, for the respondents/State.3.The learned Advocate appearing for the petitioner submits that thepetitioner was arrested on 10.06.2008 and came to be convicted bylearned Additional Sessions Judge, Kandhar, District Nanded on21.05.2010 for the offence punishable under Section 302 of Indian PenalCode. The sentence that has been imposed is imprisonment for life. Theimprisonment that is undergone by him till today is 14 years includingremission 22 years. The petitioner's contention is that he is now 85 yearsold and as per the Government Circular dated 10.01.2006 andGovernment Notification dated 01.12.2015, the premature release agefor male convict is more than 65 years and should have completed morethan 14 years of actual imprisonment. Therefore, the present petitionerought to have been put under the said category by the medical[2] wp-1642-2024-J.odtcommittee. The petitioner is relying upon the copy of his Aadhaar card,Election card to show his age. Further, the petitioner is also relying uponthe decision in Ambarishi s/o Shripadrao Patil Vs. The State ofMaharashtra and Anr., [2018 ALL MR (Cri.) 2980], wherein thepetitioner/convict was directed to produce before the medical committeeas per the Government Resolution and therefore, it is necessary thatnow the petitioner should be prematurely released or that decision betaken by the State Government.4.During the course of the writ petition, it appears that initially whenthe petitioner was produced before the jail committee, the petitioner'sinitial medical examination was got done and it was then opined by thedoctor that his age is between 50 to 60 years. This had happened in2024 and therefore, the committee itself opined that the petitionerappears to be more than 60 years and therefore, they had decided to getthe opinion from the Medical Board of of J. J. Hospital, Mumbai. Whenhe was produced before the Committee of J. J. Hospital, Mumbai, thesame opinion appears to have been given. However, when the matterwas on board on 17.01.2025, the learned Public Prosecutor had madeavailable the copy of communication dated 16.01.2025 by AdditionalSecretary, Home Department, wherein it was stated that the inquiry wasmade as to which guidelines are used in respect of medical examinationof the convict at the time of premature release. Perusal of the said[3] wp-1642-2024-J.odtguidelines would show that it was for general examination of a prisoner,but there is no specific mention about guidelines for determining the ageof a convict. Therefore, by order dated 17.01.2025, certain questionswere asked and we called upon the learned Additional Secretary, HomeDepartment to file an affidavit. Such affidavit came to be filed on07.02.2025. From the said affidavit, we could get that the Superintendentof Jail, where the convict is lodged, is supposed to submit the proposalof remission/premature release before the Advisory Board, as perGovernment Notification dated 01.12.2015 and collect all the necessarydocuments. The Advisory Board then verifies whether the prisoner hadcompleted 14 years of actual imprisonment and completed the age of(60 years in case of female prisoners) and (65 years in case of maleprisoners) and whether such prisoner is weak and infirm. However, therules do not mention specifically which document is to be relied by theAdvisory Board. The documents with the prison record are verified withthe help of birth certificate, school leaving certificate etc. and the medicalexamination by the Civil Surgeon or the medical officer, who has beenentrusted with the job to assess the physical condition of the prisoner asto whether he is weak and infirm. The affidavit then says that wherethere is valid documentation i.e. birth certificate issued by the competentauthority, school leaving certificate or service record, in case ofemployee, regarding the age of prisoners, then the medical examination[4] wp-1642-2024-J.odtwould be the only piece of evidence on which the Advisory Board wouldtake a decision. No guidelines have been issued by the State to themedical boards regarding which tests should be carried to determine theage of a convict. The practice that is adopted at present is whenever theAdvisory Board determines the age of a prisoner as falling within arange, the midpoint of the range should be considered as the age of theprisoner. The Joint Director, Health Services, State Level, Mumbai hasissued some guidelines for conducting general examination of theprisoner and the status of health of a prisoner by communication dated16.01.2025. The government is not considering the case of a prisoner forpremature release, except on the point of age i.e. for female prisonersabove 60 years and for male prisoners above 65 years. Further it isrevealed that the government has not made any rule pointing itself todecide such proposal for premature release on medical ground i.e. age +weak and infirm, in a particular period.5.We were fortunate enough to get the overview on this point fromlearned Advocate General and also the point of view of the Government.He submitted that in one matter i.e. Sonba Hanumant Pande Vs. TheState of Maharashtra [Writ Petition No.158 of 2024], to which one ofus i.e. [Manjusha Deshpande, J.] was party in passing the order on18.11.2024, a statement was made that the government is formulatingrules/guidelines for ascertaining whether the convict/prisoner is[5] wp-1642-2024-J.odtmedically fit and firm, as the guidelines for the premature release of theprisoners contemplate that the prisoner should be unfit and infirm. Astatement was made before the Bench that the State is now is in theprocess of issuing clear guidelines upon how parameters should be set.The learned APP is then representing the State sought time for placingthe concrete guidelines, however, it appears that those guidelines arenot particularly given and as aforesaid, those guidelines are for generalexamination of prisoner, which were given on 02.12.2024. Thoseguidelines do not include how to determine the age.6.Thus, as on today, it appears that the J.J. Hospital MedicalCommittee, who had examined the petitioner, has given an opinion thatthe age of the petitioner is between 50 to 60 years. If we consider the jailrecord, then it appears that when the petitioner was convicted on21.05.2010, the age of the petitioner was 60 years. It was also as per theconviction warrant. That means, throughout the trial the prosecution hadnot taken any objection regarding the age of the petitioner that wasstated in the charge sheet. Therefore, even the Superintendent of Jail,District Prison also states that the age of the petitioner as on today is 74years. This record should be considered by the State and not to only relyon the medical examination. Further, we wonder as to how there can bea gap range of 10 years when there is question of determination of age.Therefore, necessary directions are required to be issued to the[6]
Decision
wp-1642-2024-J.odtrespondents to take a decision on the premature release of the petitionertaking into consideration the age as per the jail record which is not evendisputed at any any point of time by the Government / the jail authoritiesup till now. Further, directions are also required to be issued to theGovernment to formulate the necessary rules for determination of age ofa convict. This should then be started along with the proposal forpremature release of such a convict and he can be asked to submitnecessary documents to support his or her age. It can be got verifiedthrough the concerned police and certainly, the preference will have tobe given to the birth certificate, school leaving certificate, service recordetc., enumerating preference to the documents in absence of one of it.Dependency for medical examination should be undertaken only in caseof non availability of any other documents. Of course, the documents likeAadhar card and Election card cannot be considered in such situation.With these observations, we pass the following order :-ORDERI)The Writ Petition is partly allowed.II)The respondents are directed to take decision on prematurerelease of the petitioner considering his age on the basis of jailrecord (as exceptional case) as provided under the Circular dated10.01.2006 and Government Notification dated 01.12.2015.III)Respondent No.1 is directed to frame rules fordetermination of age of a prisoner, when the cases where[7] wp-1642-2024-J.odtpremature release of a convict in terms of Government Circulardated 10.01.2006 and Government Notification dated 01.12.2015would arise, within a period of three months from today.IV)Respondent No.1 to take into consideration theobservations made in the writ petition while framing such rules andthe compliance be reported.V)Place the matter for compliance on 19.06.2025.[ MANJUSHA DESHPANDE ] [ SMT. VIBHA KANKANWADI ] JUDGEJUDGEscm[8]